City of Brownsville, Texas, Tony Martinez, Rose Z. Gowen, Ricardo Longoria Jr., Joel Munguia, Ben Neece and Jessica Tetreau in Their Official Capacities Only v. Brownsville GMS, Ltd. and Michael Bennett

NUMBER 13-19-00311-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CITY OF BROWNSVILLE, TEXAS,
TONY MARTINEZ, ROSE M. Z. GOWEN,
RICARDO LONGORIA JR., JOEL MUNGUIA,
BEN NEECE AND JESSICA TETREAU,
IN THEIR OFFICIAL CAPACITIES ONLY, Appellants,
v.
BROWNSVILLE GMS, LTD. AND
MICHAEL BENNETT, Appellees.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION DISSENTING TO DENIAL OF
MOTION FOR EN BANC RECONSIDERATION
Before the Court En Banc
Dissenting Memorandum Opinion by Justice Benavides
On May 6, 2021, a majority opinion of this Court reversed and remanded a
temporary injunction at the behest of appellants, the City of Brownsville, Texas, Tony
Martinez, Rose M. Z. Gowen, Ricardo Longoria Jr., Jessica Tetreau, Joel Munguia, and
Ben Neece, in their official capacities as members of the Brownsville City Commission
(the City). See City of Brownsville v. Brownsville GMS, Ltd., No. 13-19-00311-CV, 2021
WL 1804388, at *1 (Tex. App.—Corpus Christi–Edinburg May 6, 2021, no pet. h.) (mem.
op.). I dissented. See id. at **9–28.
Currently before the Court is a motion for en banc reconsideration filed by
appellees Brownsville GMS, Ltd. and Michael Bennett. See TEX. R. APP. P. 49.7. The
Court has denied appellees’ motion for en banc reconsideration. Again, I dissent.
I. INTRODUCTION
This case arises from the City’s alleged failure to comply with the Texas Open
Meetings Act (TOMA) and Chapter 252 of the Texas Local Government Code concerning
the City’s award of a commercial waste disposal contract. See TEX. GOV’T CODE ANN.
§ 551.142(a) (providing a cause of action for statutory violations regarding open meeting
requirements); TEX. LOC. GOV’T CODE ANN. § 252.061 (providing a cause of action for
statutory violations regarding the purchasing and contracting authority of municipalities).
The underlying facts are not seriously in dispute, and the majority’s opinion turns on its
interpretation of the relevant statutory schemes. I have already explained the majority’s
errors in detail in my dissent and will only provide a summary here in connection with my
vote for en banc reconsideration.
“En banc consideration of a case is not favored and should not be ordered unless
necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary
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circumstances require en banc consideration.” TEX. R. APP. P. 41.2(c). Courts have
discretion to determine whether en banc review is “necessary” in each case. Chakrabarty
v. Ganguly, 573 S.W.3d 413, 415–16 & n.4 (Tex. App.—Dallas 2019, no pet.) (en banc)
(stating that the standard for en banc review is sufficiently broad to afford a court the
discretion to consider a case en banc when the circumstances require and the court votes
to do so); see also Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 708 n.1 (Tex. 2003)
(per curiam).
This case demands en banc reconsideration under the foregoing standard.
II. TOMA
Under TOMA, “[e]very regular, special, or called meeting of a governmental body
shall be open to the public,” unless otherwise provided by the Texas Government Code.
TEX. GOV’T CODE ANN. § 551.002; Standley v. Sansom, 367 S.W.3d 343, 354 (Tex. App.—
San Antonio 2012, pet. denied). TOMA’s purpose is “to enable public access to and to
increase public knowledge of government decision[-]making.” City of San Antonio v.
Fourth Ct. of Apps., 820 S.W.2d 762, 765 (Tex. 1991) (orig. proceeding); see Standley,
367 S.W.3d at 354. It was enacted to provide “openness at every stage of the
deliberations” undertaken by a governmental body. Acker v. Tex. Water Comm’n, 790
S.W.2d 299, 300 (Tex. 1990) (“The executive and legislative decisions of our
governmental officials as well as the underlying reasoning must be discussed openly
before the public rather than secretly behind closed doors.”); see Terrell v. Pampa Indep.
Sch. Dist., 572 S.W.3d 294, 298 (Tex. App.—Amarillo 2019, pet. denied). As stated
succinctly by one of our sister courts, it “was promulgated to encourage good government
by ending, to the extent possible, closed-door sessions in which deals are cut without
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public scrutiny.” Save Our Springs All., Inc. v. Lowry, 934 S.W.2d 161, 162 (Tex. App.—
Austin 1996, orig. proceeding) (citing Cox Enters., Inc. v. Bd. of Trs. of the Austin Indep.
Sch. Dist., 706 S.W.2d 956, 960 (Tex. 1986) (“The Act is intended to safeguard the
public’s interest in knowing the workings of its governmental bodies.”)); see Tarrant Reg’l
Water Dist. v. Bennett, 453 S.W.3d 51, 56 (Tex. App.—Fort Worth 2014, pet. denied).
TOMA’s provisions should be liberally construed in favor of open government in order to
fulfill the statutory purpose. See Foreman v. Whitty, 392 S.W.3d 265, 271 (Tex. App.—
San Antonio 2012, no pet.); Willmann v. City of San Antonio, 123 S.W.3d 469, 473 (Tex.
App.—San Antonio 2003, pet. denied).
The majority opinion in this case fails to correctly apply these tenets as a result of
its misreading of the statute and applicable law. See Creative Oil & Gas, LLC v. Lona Hills
Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019) (“We consider issues of statutory
construction de novo.”); Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253
S.W.3d 184, 192 (Tex. 2007) (“Statutory construction is a question of law, which we
review de novo.”).
The majority’s opinion regarding TOMA merits en banc review because it directly
conflicts with our precedent. See TEX. R. APP. P. 41.2(c). The majority’s analysis is
inconsistent with our cases which recognize that TOMA provides mandamus and
injunctive relief to stop, prevent, or reverse a violation or threatened violation of TOMA.
See Matagorda Cnty. Hosp. Dist. v. City of Palacios, 47 S.W.3d 96, 102 (Tex. App.—
Corpus Christi–Edinburg 2001, no pet.) (“To effectuate the policy of keeping government
meetings open to the public, the legislature has allowed an ‘interested person’ to bring an
action by mandamus or injunction to stop, prevent, or reverse a violation or threatened
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violation of [TOMA].”); see also Port of Corpus Christi, LP v. Port of Corpus Christi Auth.
of Nueces Cnty., No. 13-19-00378-CV, 2021 WL 2694772, at *7 n.5 (Tex. App.—Corpus
Christi–Edinburg July 1, 2021, no pet. h.) (mem. op.).
The majority’s opinion regarding TOMA also merits en banc review because it
presents extraordinary circumstances. See TEX. R. APP. P. 41.2(c). The allegations
regarding the City’s repeated failures to comply with TOMA implicates the public’s
interests in government transparency. See City of San Antonio, 820 S.W.2d at 765; Acker,
790 S.W.2d at 300; Standley, 367 S.W.3d at 354. In this regard, TOMA’s provisions inure
to the benefit of the general public, not merely the litigants at issue: “The intended
beneficiaries of the Act are not individual citizens, such as the particular landowners
affected by [the alleged wrongful act], but members of the interested public.” City of San
Antonio, 820 S.W.2d at 765; see City of Donna v. Ramirez, 548 S.W.3d 26, 34 (Tex.
App.—Corpus Christi–Edinburg 2017, pet. denied). The City’s failure to adhere to the
tenets of TOMA and its engaging in closed-door decision-making, as alleged in this case
and as evidenced in this record, deprives the public of its right to open government.
III. CHAPTER 252
Chapter 252 of the Texas Local Government Code, entitled “Purchasing and
Contracting Authority of Municipalities,” imposes competitive-bidding requirements for
certain purchases made by municipalities. See TEX. LOC. GOV’T CODE ANN. §§ 252.001–
.063. “If [a] contract is made without compliance with this chapter,” Chapter 252 further
provides, “it is void, and the performance of the contract, including the payment of any
money under the contract, may be enjoined” by, as relevant here, “any property tax paying
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resident of the municipality.” Id. § 252.061; see City of New Braunfels v. Carowest Land,
Ltd., 432 S.W.3d 501, 532 (Tex. App.—Austin 2014, no pet.).
I disagree with the majority’s conclusions regarding Chapter 252 for the reasons
stated in my dissent. See City of Brownsville, 2021 WL 1804388, at **15–18. I believe
that the majority opinion fails to properly apply and adhere to Texas Supreme Court
precedent and this Court’s opinions regarding the correct standard of review for a
temporary injunction. Because this failure is particularly evident with regard to the Chapter
252 allegations, I would conclude that there are extraordinary circumstances requiring en
banc reconsideration with respect to those allegations. See TEX. R. APP. P. 41.2(c).
A temporary injunction’s purpose is to preserve the status quo of the litigation’s
subject matter pending a trial on the merits. Clint Indep. Sch. Dist. v. Marquez, 487
S.W.3d 538, 555 (Tex. 2016); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002); Burkholder v. Wilkins, 504 S.W.3d 485, 491 (Tex. App.—Corpus Christi–Edinburg
2016, no pet.); Sargeant v. Al Saleh, 512 S.W.3d 399, 408 (Tex. App.—Corpus Christi–
Edinburg 2016, no pet.) (combined appeal & orig. proceeding [mand. denied]). We do not
review or decide the underlying merits. Henry v. Cox, 520 S.W.3d 28, 33 (Tex. 2017);
Butnaru, 84 S.W.3d at 204; InterFirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d
640, 641 (Tex. 1986) (per curiam); Super Starr Int’l, LLC v. Fresh Tex. Produce, LLC,
531 S.W.3d 829, 838 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.); see also
Magellan Terminal Holdings, L.P. v. Vargas, No. 13-19-00354-CV, 2021 WL 79351, at *2
(Tex. App.—Corpus Christi–Edinburg Jan. 7, 2021, no pet.) (mem. op.) (explaining that
the purpose of a temporary injunction “is to preserve the status quo of the litigation’s
subject matter pending a trial on the merits,” it “may not be used to obtain an advance
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ruling on the merits,” and the court “will decline to reach arguments as to the merits of
the case”); Cameron Cnty. v. Valley Sandia, Ltd. Co., No. 13-16-00324-CV, 2018 WL
1542428, at **1–2 (Tex. App.—Corpus Christi–Edinburg Mar. 29, 2018, no pet.) (mem.
op.) (stating that temporary injunctions preserve the status quo pending trial on the merits
and a “ruling on temporary injunctive relief may not be used to obtain an advance ruling
on the merits”).
Here, the majority’s ruling did not address or preserve the status quo and instead,
as discussed in my dissent, see City of Brownsville, 2021 WL 1804388, at **13–14, leapt
to an improvident and premature decision on the merits. This form of analysis disregards
the correct standard of review, directly conflicts with precedent, and has the potential to
unfairly skew the correct analysis in future cases.
IV. CONCLUSION
For the foregoing reasons, I respectfully dissent from the Court’s denial of
appellees’ motion for en banc reconsideration.
GINA M. BENAVIDES
Justice
Memorandum Opinion Dissenting To Denial Of Motion For En Banc Reconsideration
joined by Chief Justice Contreras.
Delivered and filed the
19th day of August, 2021.
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